The appellants sued the appellee London Gas Company in the Laurel Circuit Court for damages arising out of the destruction by fire of a building. A jury trial resulted in a verdict for appellee. On appeal to this Court the case must be reversed because instructions given by the trial court were erroneous.
Briefly, the facts were developed as follows: A delivery man backed his truck up to the loading ramp at the rear of appellants' furniture store and set some paper cartons on the ramp. Beneath the ramp were empty paper cartons which appellants had placed there to be removed as trash. The appellee's gas meter was located about 46 inches from and below the ramp. The delivery man went into the store to collect his charges, remained five minutes, and when he returned observed a fire raging near the end of the ramp. The fire was in the vicinity of both the trash and the gas meter. Its origin is unknown. Five to ten minutes after it started a puff, or explosion, occurred. The building was destroyed.
Appellants testified they had notified the gas company on four occasions that they detected the odor of gas in the building. The gas company denied receiving any notice.
Instruction No. 1 as given by the court is as follows:
Instruction No. 6 was given by the court as follows:
The latter instruction if only the converse to Instruction No. 1 should not have been given. Stanley's Instructions to Juries, vol. 1, section 14a; Lexington Glass Co. v. Zurich General Acc. & Liability Ins. Co., Ky., 271 S.W.2d 909. However, the real vice is that it requires the gas to be the igniting agent. The question should not be what ignited the fire, but whether the gas created a condition which was a substantial contributing
The appellee, of course, was entitled to have the jury instructed concerning appellants' contributory negligence, if any. The trial court instructed on contributory negligence as follows (No. 9):
By that instruction the jury was told to find that appellants were contributorily negligent if they piled boxes or other debris in the rear of the building which might have caused or did cause the fire. The jury should have been given the duty of finding the appellants contributorily negligent if the piling of boxes or other debris created a fire hazard or condition which was a substantial contributing factor to the fire. As given by the court, the instruction was too indefinite, especially in identification of parties. Doubtless an instruction given on a new trial will properly identify the parties.
Appellants complain of the trial court's refusal to permit testimony concerning the accuracy of the gas company's record book. The alleged inaccuracy was to be proven by one isolated instance where supposedly an entry was not made. Testimony of this fact would have had nebulous value, and the court properly excluded it.
On the other hand, the testimony of the bystander concerning what he heard Billy Moore, one of the appellants, say on the telephone should have been admitted. The witness testified that he overheard a conversation between Billy Moore and another party on a telephone. Billy Moore represented to him that he was calling the gas company to notify it of the odor of gas. The jury was erroneously admonished not to consider that testimony. Moore had previously testified that he notified the gas company of the odor of gas in the building. The rule is correctly stated in 20 Am.Jur., Evidence, section 369:
The judgment is reversed, with directions that appellants be granted a new trial.
BIRD, J., not sitting.